Obtaining Property by Deception & Making off without payment

Obtaining Property by Deception

Section 15 of the Theft Act 1968 defines the criminal offence of obtaining property by deception. Section 15 describes the offence as being committed by one who by deception dishonestly obtains property belonging to another, with the intention of permanently depriving him of it.

Accordingly, in order to establish the criminal offence of obtaining property by deception the following elements must be present:

  • Obtaining

  • Property

  • Belonging to Another

  • Deception

  • Dishonesty

Do all of the above elements have to be established?

It has been held in criminal court proceedings that all of the above elements need to be proven in order for Section 15 obtaining property by deception to be established. If one of the elements cannot be established then the defendant will be acquitted of the charges.

What is the standard that needs to be proven?

In order for each of the above elements to be proven the standard which must be established by the court is that of beyond reasonable doubt.

Obtaining

According to Section 15(2) of the Theft Act 1968 obtaining occurs when a person acquires ownership, possession or control. The definition also includes obtaining for another or enabling another to obtain or retain. It is important to note the link between obtaining and deception. In order for the offence to be proven the property must have been obtained by deception, it is not enough to simply prove that the defendant had obtained the property.

Property

Section 4 of the Theft Act 1968 defines property as including money and all other property, real or personal including things in action and other intangible property. In most cases of obtaining property by deception the property is likely to be money or something similar.

Belonging to Another

Section 5 of the Theft Act 1968 states that property shall be regarded as belonging to any person having possession or control over it, or any proprietary right or interest.

If for example money in someone’s bank account would clearly fall squarely within the definition of property belonging to another.

What is the position in relation to an electronic bank transfer?

According to case law an electronic transfer between banks cannot count as property belonging to another.

Is there anything which can be done in a case concerning this?

Section 15 of the Theft Act deals with a situation whereby one dishonestly obtains a money transfer for himself or another creating the criminal offence of Obtaining a Money Transfer by Deception, which could be used as an alternative for obtaining property by deception.

Obtaining a Money Transfer by Deception

Under Section 15 of the Theft Act a transfer occurs when a debit is made to one account and a credit is made to another. A credit must result from the debit or a debit must result from the credit. There must be an amount of money involved but it is immaterial whether the amount credited equates to that debited, whether the transfer is by cheque or by any other method or whether there is a delay in the process.

Deception

Section 15 of the Theft Act states that deception encompasses deception by words or conduct as to fact or law and includes deception as to present intentions or the person using the deception or to any other person.

The defendant accused of the deception must know that the statement may be or is false but that it can be taken as true.

Example of obtaining property by deception

An example of obtaining property by deception would be obtaining a job stating that you have a particular qualification in a particular field when you do not and providing bogus references in application for the specific position. You will then be paid money which would be the property which you had obtained by the deception.

Deception may be carried out by words or conduct. The above statement whether it was oral or submitted in writing would be considered deception by words. Once carrying out the job in relation to potential customers or other co-workers would be seen as deception by conduct.

For example if someone was to pose as a doctor that would be seen as deception by conduct. However, if an individual was simply to wear a uniform which they were not entitled to would not amount to deception by conduct.

Furthermore this deception must be relied on in obtaining the property. In the above example if an employer employed the person for some other reason that the bogus references and the lie concerning qualifications then the property would not have been obtained by deception. 

Dishonesty

The final element to establish is that of dishonesty. The standard criminal law test of dishonesty is used with the following elements required to be established:

  • That the act was dishonest by contemporary standards

  • That the defendant knew it was dishonest

It most cases the property will be obtained by a lie as in the above example due to the false references and the false qualifications. In situations like that it would be extremely difficult to prove that the act was not done dishonestly.

What are the sentencing guidelines for this offence?

A fine of up to £5,000 and or a prison sentence of up to six months is the penalty for most cases of making off obtaining property by deception. For more serious cases heard in a magistrate’s court, however, the penalty could be higher with the maximum prison term being 10 years. This will be dependent on the facts of the case and the value of the property obtained.

Making off Without Payment

Section 3 of the Theft Act 1978 details the criminal offence of making off without payment. It is defined as committed by an individual who knowing that payment on the spot for goods supplied or services done is required or expected of him, dishonestly makes off without having paid as required or expected with intent to avoid payment.

Other offences present

The offence of making off without payment can only be established in the event that either Theft, Obtaining Property by Deception or Dishonestly Obtaining Services can be charged.

What needs to be established?

In order for the offence to be established the following elements need to be present:

  • Making off

  • Without payment

  • Intention to make permanent default

Making off

If we take the example of leaving a restaurant without paying the bill making off will occur when an individual goes beyond the spot where the payment is required or expected. This would include leaving the restaurant but not simply leaving the table to go to the toilet.

Without payment

Without payment takes its prima facie meaning of simply not providing any money for the goods of services.

Intention to make permanent default

A defendant accused of making off without payment must have known that payment was required and intended to leave without paying, with no intention of coming back or ever paying for the goods or services.

Sneaking out of a restaurant without paying the bill will fall squarely within this definition.

What are the sentencing guidelines for this offence?

A fine of up to £5,000 and or a prison sentence of up to six months is the penalty for most cases of making off without payment. For more serious cases heard in a magistrates’ court, however, the penalty could be higher.